The Basic Conditions of Employment Act (BCEA) sets the fundamental conditions of service for all employment situations, ranging from the domestic to, with variations, the industrial.
When it comes to hours worked per week in business, particularly overtime, the BCEA is precise – the maximum normal working time allowed is 45 hours per week, any overtime is voluntary and may only be worked in agreement between employer and employee.
Nicol Myburgh, Head of HR Business Unit at CRS Technologies, an HR and HCM specialist services provider, offers a broad perspective on the matter and the company’s view, which, as he explains, is only a guideline.
Myburgh says there are terms and conditions that have to be taken into consideration – including the fact that the above regulation excludes lunch breaks. “Lunch breaks are, by law, not defined as working time and will, therefore, be unpaid,” and does not mean the employee must work 45 hours per week normal time.
“The normal working hours are determined by mutual agreement between employee and employer, in this aspect the act only provides the maximum limit of 45 hours, and does not mean the employee MUST work 45 hours per week normal time. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time,” says Myburgh.
As CRS Technologies explains all overtime is voluntary and may only be worked by agreement between employer and employee.
Labour legislation is also clear on overtime, defined as time worked in excess of the normal working hours. “The maximum permissible overtime is three hours per day or 10 hours per week. The employee must be paid at one and a half times his/her normal wage rate except for Sunday work and work on public holidays, which must be paid at twice the normal wage rate. The employees aren’t necessarily paid for overtime, instead by mutual agreement, they can be granted time off in lieu of payment calculated by the same formula mentioned above,” Myburgh continues.
By mutual agreement
However, this segment of the law is only applicable to employees earning below the earnings threshold, as determined by the Minister, and is currently R205 433,30.
As CRS Technologies executives explain, overtime payment or time off in lieu thereof for employees earning above this threshold is not compulsory, but rather a mutual agreement between employer and employee.
Employees earning above the threshold for overtime who are not compensated by employers have the right to refuse to participate in overtime work.
While it is true that each industry has its own variations and is governed by specific dynamics, legislation regulating overtime is applicable irrespective.
“No employee may work more than 45 hours per week normal time and the no employee may work more than 10 hours per week overtime. However, while the BCEA sets the fundamental minimum rules, there are legislated variations based on sectoral or industry operational requirements. A sectoral determination, a Bargaining Council Main agreement or a union agreement, etc. may bring about variations on the conditions mentioned above since these documents are viewed as extensions of the act. These are known as delegated legislation,” says Myburgh.
CRS Technologies refers to the security industry as an example.
The company explains that Sectoral Determination 6: Private Security Sector, regulates among other conditions the maximum normal working hours to 48 hours per week for a security officer.
“and the Metal and Engineering Industries Bargaining Council regulates the conditions for employees operating in the industry, among other conditions the ordinary hours of work shall not exceed 40 in any one week for employees on day shift and/or night shift or employees working on the two and/or three-shift system,” Myburgh explains.
A further example is the retail industry, where overtime provisions allow for extended shopping hours.